The Supreme Court Review, 20012001 Sup. Ct. Rev. 201Chevron's Nondelegation DoctrineBy David J. Barron and Elena KaganBIO: David J. Barron is Assistant Professor, Harvard Law School. Elena Kagan is Professor, Harvard LawSchool.Copyright (c) 2001 The University of ChicagoAUTHORS' NOTE: We thank Dick Fallon, Jerry Frug, Martha Minow, John Manning, Dan Meltzer, ToddRakoff, Chris Schroeder, and Bill Stuntz for very helpful comments and Michelle Glassman for excellentresearch assistance. The Harvard Law School Summer Research Fund supported work on this article.SUMMARY:... In this article we contend that such an internal agency nondelegation doctrine should determine therigor of judicial review of an agency's interpretive decisions--or, otherwise stated, should define thesphere in which courts defer to these decisions under Chevron U.S.A., Inc. v Natural Resource DefenseCouncil, Inc. ... An appeal to constitutional principles cannot give content to the Chevron doctrine becausethe only clear principle does nothing more than restate the dilemma. ... But what must this statutorydelegatee do to qualify an agency interpretation for Chevron deference? What does it mean for thisperson to make the interpretation hers in the way we would require? As an initial matter, the delegateemust issue the interpretation under her name. ... In suggesting an approach to Chevron doctrine thatfocuses on the assignment of decision-making responsibilities within an agency, we have drawn a broadanalogy to the congressional nondelegation doctrine. ... The most important relates to the divergenteffects of applying a robust congressional nondelegation doctrine and reformulating Chevron as anadministrative analogue. ... There is another argument against the congressional nondelegation doctrine--relating to the feasibility of judicial enforcement--which also might cut against our approach to Chevron. ...Justice Scalia's test, as noted earlier, accords Chevron deference to any "authoritative" agencyinterpretation. ... The congressional nondelegation doctrine, which aims to promote (as most of administrative law aims to promote) similar values as Chevron and Mead, suggests and informs thisapproach. ...TEXT:[*201] American public law today recognizes only one nondelegation doctrine, and even that one almostalways in the breach. This nondelegation doctrine, of course, refers to Congress's ability to hand over to agiven agency official the authority to make policy decisions. But beyond the transfer of power fromCongress to an agency official lies the potential for still a further delegation, this time from the officialwhom Congress has specified to her bureaucratic underlings. And because this is so, beyond thecongressional nondelegation doctrine lies the potential for another, concerning the agency official's abilityto subdelegate her decision-making authority to others.In this article we contend that such an internal agency nondelegation doctrine should determine the rigor of judicial review of an agency's interpretive decisions--or, otherwise stated, should define the sphere inwhich courts defer to these decisions under Chevron U.S.A., Inc. v Natural Resource Defense Council,Inc. n1 The idea here is not to prohibit congressional delegatees from giving authority to lower-levelagency officials to fill in gaps and resolve ambiguities in legislation. Such a bar would be, if notimpossible, at the least unwelcome. The idea, instead, is to distinguish among [*202] exercises of thisauthority based on the identity of the final agency decision maker and then to reward, through moredeferential judicial review, interpretations offered by more responsible officials. This approach wouldmake the institutional choice reflected in the Chevron doctrine--the choice, that is, between agencies and

courts in ultimately resolving statutory ambiguities--dependent on a matter of prior institutional design thatcourts today fail to consider: the decision of the agency as to whether, within the agency's four walls, thecongressional delegatee or, alternatively, a lower-level official is to exercise interpretive authority.Our reflections on this score arise from United States v Mead Corp., n2 the latest and most important in aline of cases in which the Supreme Court has attempted to demarcate the scope of the Chevron doctrine,or what one recent article has termed "Chevron's domain." n3 The question in Mead was whether theChevron deference rule applied to a tariff classification ruling of the U.S. Customs Service. The Court heldthat the tariff ruling fell outside the scope of Chevron and so could not claim its strong brand of deference.The eight-member majority first framed the issue as an inquiry into whether Congress, in enacting thestatute at issue, had intended for the courts to defer to this kind of interpretive decision. The majority thenreasoned that the lack of formal procedures preceding the decision, as well as its highly particularisticnature, indicated to the contrary. Surveying the landscape after Mead, Justice Scalia in lone dissentcharged that an "avulsive change in judicial review of federal administrative action" had taken place. n4No longer was an agency's interpretation of its own organic statute--regardless of the interpretivedecision's pedigree, form, or character--presumptively entitled to Chevron deference.The issue addressed in Mead assumes its consequence from the heavy reliance of agencies today onrelatively informal, "non-rulelike," or decentralized forms of administrative action. Chevron arose from amajor rule, which the administrator of the EPA issued in accordance with the notice-and-commentprocedures of the Administrative Procedure Act (APA). n5 But many--indeed, the vast [*203] majority of--agency decisions have nothing like this aspect. They may emerge, like the tariff ruling of Mead, fromprocesses considerably more streamlined than those detailed in the APA. They may apply, like the tariff ruling, in this case and this case only, rather than as a general prescription. And they may proceed, as inMead, not from the central hierarchy of the agency but from branch offices or limited subject matter divisions. Assuming Chevron to have even a fraction of the significance that the countless judicialdecisions and law review articles on the case would indicate, the question whether or which of thesevarious administrative actions merit Chevron deference thus becomes of critical importance to theoperation of the administrative state.We first argue in this article that an inquiry into actual congressional intent, of the kind the Mead Courtadvocated, cannot realistically solve this question. Although Congress has broad power to decide whatkind of judicial review should apply to what kind of administrative decision, Congress so rarely discloses(or, perhaps, even has) a view on this subject as to make a search for legislative intent chimerical and aconclusion regarding that intent fraudulent in the mine run of cases. (The statute at issue in Meadcomplicates but also underlines our basic point; although the statute contains unusual indicia of legislativeintent, these point in the exact opposite direction from the one the Court took, thus demonstrating thehazards of the Court's approach.) Given the difficulty of determining actual congressional intent, someversion of constructive--or perhaps more frankly said, fictional--intent must operate in judicial efforts todelineate the scope of Chevron. After considering other alternatives, we aver that this construction shouldarise from and reflect candid policy judgments, of the kind evident in Chevron itself, about the allocation of interpretive authority between administrators and judges with respect to various kinds of agency action.Underneath the rhetoric of legislative intent, an approach of this kind in fact animates the Mead decision,but the Court's reliance on the two stock dichotomies of administrative process failed to generate themost appropriate distribution of interpretive power. The Court emphasized most heavily the dividebetween formal and informal procedures, suggesting that, except in unusual circumstances, onlydecisions taken in formal procedural contexts merit Chevron deference. But this preference for formality inadministration, [*204] even in cases when not statutorily required, fails to acknowledge the costsassociated with the procedures specified in the APA, which only have increased in significance since thatstatute's enactment. The Court similarly noted at times the divide between generality and particularity inadministrative decision making, suggesting that actions exhibiting the former trait should receive greater judicial deference. But administrative law doctrine long has resisted, for good reason, the temptation topressure the choice between general and particular decision making, in light of the many and fluctuatingconsiderations, usually best known to an agency itself, relevant to this choice. None of this is to say thatinterpretive authority in areas of statutory ambiguity or silence always should rest with agency officials; it

is only to say that in allocating this power in a way consistent with important administrative values, courtscan do better than to rely on the two usual (indeed, hoary) "either-ors" of agency process.We contend that the deference question should turn on a different feature of agency process, traditionallyignored in administrative law doctrine and scholarship--that is, the position in the agency hierarchy of theperson assuming responsibility for the administrative decision. More briefly said, the Court should refocusits inquiry from the "how" to the "who" of administrative decision making. If the congressional delegatee of the relevant statutory grant of authority takes personal responsibility for the decision, then the agencyshould command obeisance, within the broad bounds of reasonableness, in resolving statutory ambiguity;if she does not, then the judiciary should render the ultimate interpretive decision. This agencynondelegation principle serves values familiar from the congressional brand of the doctrine, as well asfrom Chevron itself: by offering an incentive to certain actors to take responsibility for interpretive choice,the principle advances both accountability and discipline in decision making. At the same time, thenondelegation principle, as applied in the administrative context to determine the appropriate deferenceregime, escapes the well-known difficulties of the congressional nondelegation doctrine: theadministrative principle will neither lead to excessive centralization nor prove incapable of judicialenforcement. Critical to this analysis is a more general phenomenon often disregarded in discussions of administrative law, yet highly significant for the [*205] creation of doctrine: the interplay of political with judicial constraints in shaping agency behavior.The aspect of institutional design we emphasize here--call it the high level/low level distinction--justifiesthe result the Court reached in Mead, but only by fortuity. In other cases our approach would divergesignificantly from the Court's--in granting deference even in the absence of formality or generality and,conversely, in refusing deference even in the face of these attributes. This approach also would divergefrom Justice Scalia's, given the nearly unlimited deference he favors. But oddly enough, we see our approach as in some sense, even if in a sense unrecognized by the Justices themselves, present in all of their different views on the issue: because this is so, we see some potential for the Court to move toward,and even converge on, the Chevron nondelegation doctrine we advocate.The article proceeds in five parts. Part I sets the stage by describing the emergence after Chevron of issues relating to that decision's reach and summarizing the contrasting approaches to these issues takenin the Mead opinions. Parts II and III are critique. Part II argues that the Court's reliance on congressionalintent should give way to a frankly policy-laden assessment of the appropriate allocation of power in theadministrative state. Part III contends that the underlying policy evaluation of the Court misidentifies thecriteria that should govern this allocation by focusing on the presence of formal procedures andgenerality. Parts IV and V offer our alternative approach. Part IV describes and defends the Chevronnondelegation principle as facilitating responsible agency decision making. Part V applies our analysis toMead and discusses its potential application in other contexts.I. BACKGROUNDIn the beginning (at least for the purposes of this article), there was Chevron. The question in that caseconcerned whether the Environmental Protection Agency (EPA) had acted lawfully when it issued a rule,in accordance with applicable notice-and-comment procedures, defining the term "stationary source" inthe Clean Air Act to refer to whole plants, rather than each pollution-emitting device within them. Insustaining the rule, the Court prescribed [*206] a by now well-known, two-step inquiry to govern judicialreview of an agency's interpretation of a statute that the agency administers. The first question is"whether Congress has directly spoken to the precise question at issue"; n6 if so, the agency mustcomply with that judgment. The second question, reached only if Congress failed to speak clearly, iswhether the agency has adopted a "reasonable" interpretation of the statute; n7 if so, the courts mustaccept that interpretation.Nearly as soon as Chevron issued, questions began to arise about its reach--in particular, its applicationto agency interpretations rendered in contexts other than notice-and-comment rulemaking. The Court inseveral subsequent cases granted Chevron deference to interpretive decisions issued in formaladjudications, n8 but the Court's failure specifically to address the question left some lower courts and